CLA-2 CO:R:C:T 957002 ch
District Director
U.S. Customs
J.F.K. Airport
Building 77
Jamaica, New York 11430
RE: Application for further review of Protest No. 1001-94-105535 under 19 U.S.C., section 1514(c)(2);
classification of men's and boys' woven cotton boxer
shorts; applique.
Dear Sir:
This is a decision on application for further review of a
protest timely filed by Grunfeld, Desiderio, Lebowitz &
Silverman, on behalf of Lifeguard Apparel, Incorporated, against
your notice of redelivery, dated March 9, 1994. We have
considered the protest and our decision follows.
FACTS:
The submitted samples, styles B5413 and B4413, are two pairs
of woven boxer shorts, composed of 55 percent cotton and 45
percent polyester, from Hong Kong. They possess hangtags
identifying them as Looney Tunes Boxers from Lifeguard Underwear,
Incorporated. Style B5413 is a men's size medium and features a
fully elasticized enclosed waistband. It possesses a fly front
with a one button closure and weighs approximately 2.8 ounces per
square inch. The garment measures approximately 15 inches from
the top of the waistband to its hemmed bottom; 12 3/4 inches
across the relaxed waist; 12 3/4 inches across a single leg
opening. A cartoon applique, measuring approximately 5 inches by
2 inches, is affixed 2 inches above the bottom of the left leg at
the front of the garment. The article does not possess belt
loops, inner or outer pockets or a lining.
Style B4413 is a boys' size medium (for sizes 10 through 12)
and features a fully elasticized enclosed waistband. It
possesses a fly front with a one button closure and weighs
approximately 2.8 ounces per square inch. The garment measures
approximately 15 inches from the top of the waistband to its
hemmed bottom; 11 3/4 inches across the relaxed waist; 11 inches
across a single leg opening. A cartoon applique, measuring
approximately 3 1/4 inches by 2 1/2 inches, is affixed 2 1/2
inches above the bottom of the left leg at the front of the
garment. The article does not possess belt loops, inner or outer
pockets or a lining.
Styles B5413 and B4413 were entered under subheading
6207.11.0000, Harmonized Tariff Schedule of the United States
(HTSUS), which provides for men's or boys' cotton underpants and
briefs. However, style B5413 was classified in subheading
6203.42.4050, HTSUS, which provides for men's woven cotton
shorts; and style B4413 was classified in subheading
6203.42.4060, HTSUS, as boys' woven cotton shorts.
ISSUE:
What is the proper tariff classification for the instant
boxer shorts?
LAW AND ANALYSIS:
In light of contemporary fashions trends, it is our practice
to classify boxer shorts as either underwear, sleepwear or shorts
on a case-by-case basis. See HRL 953487, dated April 22, 1993;
HRL 953005, dated December 24, 1992; HRL 951981, dated September
8, 1992. We recognize the following features as indicative of
non-underwear garments:
1. Fabric weight greater than 4.2 ounces per
square yard;
2. An enclosed or turned over waistband;
3. Lack of a fly or presence of a lining;
4. A single leg opening greater than the relaxed
waist;
5. The presence of belt loops, inner or outer
pockets or pouches;
6. Multiple snaps at the fly opening;
7. The side length of a size medium should not
exceed 17 inches.
Boxer shorts which display more than one of the above
features are presumptively not underwear. However, this
presumption is rebuttable where it can be shown that criteria
such as marketing or other physical attributes are determinative.
In this instance, style B5413 possesses only one non-underwear
feature (enclosed waistband). In addition, the hangtag lends
some credence to the claim that it is marketed as an
undergarment.
Style B5413 was classified as shorts due to the presence of
the applique. In Headquarters Ruling Letter (HRL) 955787, dated
April 26, 1994, we observed that the presence of an embroidered
patch on a pair of boxer shorts supported the presumption that
the garment was classifiable as shorts. This conclusion was
warranted as a patch or an applique would tend to make a pair of
underpants uncomfortable if worn beneath another garment. We did
not mean to suggest, however, that a patch or an applique would
invariably transform a garment that is otherwise classifiable as
underwear into shorts. We recognize that at some point an
applique would be so cumbersome so as to lead to this result.
This determination must, however, be made on a case-by-case
basis.
In this instance, style B5413 is lightweight and possesses
the characteristics of boxer style underwear. The size, weight
and pliability of the cartoon applique would not discourage one
from wearing the garment in this fashion. Hence, we do not feel
that the applique transforms the boxer shorts into an outerwear
in this instance. Consequently, style B5413 is classifiable as a
pair of men's woven cotton underpants.
In HRL 956034, we noted that the boxer short criteria were
adopted with a view to adult garments. At that time, we stated
that a side length of 12 inches for a child's garment would not
comfortably fit beneath another garment and could be regarded as
a non-underwear feature. However, we have had occasion to
reconsider this finding and conclude that it is too sweeping a
generalization. In HRL 956034, the shorts were extremely heavy
and would be uncomfortable if worn beneath another garment. In
addition, the article was described as outerwear according to
certain specification sheets. For these reasons, we will not
revoke HRL 956034. However, it is no longer our opinion that a
side length of 12 inches or more constitutes a non-underwear
feature for a child's garment. We will, of course, continue to
bear in mind that garments for children are not sized for adults
and this fact may affect the classification of boxer style shorts
in the future.
In light of this discussion, style B4413 is substantially
similar in design to style B5413 despite the fact that it has
been designed for boys. The garment possesses a single non-underwear feature (enclosed waistband) and is identified as the
product of Lifeguard Underwear, Incorporated. The applique is
not so substantial that it converts the shorts into outerwear.
Therefore, style B4413 is classifiable as boys' woven cotton
underwear.
HOLDING:
Based on the foregoing discussion, this protest should be
granted in full. Styles B4413 and B5413 are classifiable in
subheading 6207.11.0000, HTSUS, which provides for men's or boys'
woven cotton underpants and briefs. The applicable rate of duty
is 6.5 percent ad valorem. The textile category is 352. A copy
of this decision should be attached to the CF 19 Notice of Action
to satisfy the notice requirement of section 174.30(a), Customs
Regulations.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to mailing of the decision. Sixty
days from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Freedom of Information Act
and other public access channels.
Sincerely,
John A. Durant, Director
Commercial Rulings Division